At UNCLOS III, the Antarctic Treaty parties were most reluctant to - IHO

31 Pages·2003·0.26 MB·English

TERRITORIAL SEA BASELINES ALONG ICE COVERED COASTS:
INTERNATIONAL PRACTICE AND LIMITS OF THE LAW OF THE SEA

Professor Stuart B. Kaye
Faculty of Law
University of Wollongong

Address for Correspondence:
Faculty of Law
University of Wollongong NSW 2522
AUSTRALIA
Fax: [phone]
E-mail: <[email protected]>
Abstract

This article considers the relevant international law pertaining to territorial sea baselines, and
reviews the application of that law to ice-covered coasts. The international literature concerning
status of ice in international law is examined and State practice for both the Arctic and Antarctic is
reviewed. The Law of the Sea Convention contains virtually no provisions pertaining to ice, as
during its negotiation, in an effort to reach a consensus, all discussion of Antarctica was avoided.
International lawyers appear to favour the notion that where ice persists for many years and is fixed
to land or at least is connected to ice that is connected to land, it may be able to generate territorial
sea baselines. Neither the International Court of Justice nor any other international tribunal has had
the opportunity to consider the status of ice, except in the most general terms. This article considers
some alternatives and difficulties in their application. The impact of the Antarctic Treaty on any
system is also considered, as Articles IV and VI of the Treaty may be affected by any international
action by claimants in proclaiming baselines.

1
1. Introduction

The Law of the Sea Convention pertains to all the world’s oceans and provides a regime for the
determination of coastal State maritime jurisdiction. At the core of the regime lies a scheme of
maritime zones, radiating out from the coast, that cover a third of the world’s ocean space, over
ninety percent of the world’s wild fisheries, and almost all the world’s resources of offshore oil
and gas. Critical to this regime is the location of the territorial sea baseline, as it is the point
from where all the maritime zones are calculated.

For most of the globe, the location of territorial sea baselines is relatively straight forward, with
the greatest difficulties arising from interpretation of the rules contained within the Convention.
The focus of this article is on that portion of the Earth’s coastline that does not have a
conventional coast, but rather of a coast beset with a permanent ice cover. While the presence of
ice may present a seemingly natural and continuous barrier that resembles land, ice shelves are in
motion, both in terms of gradual growing and breaking off, and moving slightly up and down
with the tides. This article considers how an ice-covered coast might be dealt with at
international law and some of the complications generated by the location of the vast majority of
ice beset coasts in the Antarctic.

2. International Law and Territorial Sea Baselines

Ordinarily, the low water mark1 along the coastline serves as the baseline from which the territorial
sea will be measured,2 however there are a number of exceptions. Since 1951, international law has
recognised that where a coastline is deeply indented and/or dotted with fringing islands, it ought to
be permissible for a coastal State to draw baselines around such features.3 As such, features like the
mouths of rivers or certain bays can, for the purposes of measuring the territorial sea, be "closed off"
and treated as if they were part of the coastline. The waters to the landward side of these baselines
are designated internal waters and for the purposes of State sovereignty they are treated as if they are
land.4

1 The United Nations Office for Ocean Affairs and the Law of the Sea adopted a resolution of the
International Hydrographic Conference:
The low-water line is the intersection of the plane of low-water with the shore. The low-
water mark on a chart is the line depicting the level of the chart datum. A technical
resolution of the International Hydrographic Organization states that the level used as the
chart datum shall be a place so low that the tide will not frequently fall below it. In
practice this will be close to the lowest tidal level.

United Nations Office for Ocean Affairs and the Law of the Sea, Baselines: An Examination of the
Relevant Provisions of the United Nations Convention on the Law of the Sea (United Nations, New York:
1989) 2-3. See also Satya N. Nadan and Shabtai Rosenne (eds) United Nations Convention on the Law of
the Sea 1982: A Commentary (Martinus Nijhoff, Dordrecht: 1993) 89.
2 United Nations Convention on the Law of the Sea (LOS Convention), 10 December 1982, Montego Bay, 21
I.L.M. 1261 (1982): Article 5.
3 Anglo-Norwegian Fisheries Case, [1951] I.C.J. Reports p.116; see also D.P. O'Connell, The International Law
of the Sea (Oxford: Clarendon Press, 1982) Vol.1, 206; D.H.N. Johnson, “The Anglo-Norwegian Fisheries
Case” (1952), 1 International and Comparative Law Quarterly 145.
4 Article 8 of the LOS Convention.
2
The regime of territorial sea baselines in the contemporary law of the sea is dealt with in Part II,
Section 2 of the Law of the Sea Convention. These provisions indicate the appropriate standard for
an ordinary territorial sea baseline and the circumstances when other baselines may be drawn. The
basic provision is contained in Article 5 of the Law of the Sea Convention where it states:
Except as where otherwise provided in this Convention, the normal baseline for
measuring the breadth of the territorial sea is the low-water line along the coast as
marked on large scale charts officially recognised by the coastal State.5

In the event the low water mark is not used, the Convention permits a range of other circumstances
where baselines can be drawn. While not all of these categories of circumstances are directly
relevant to this paper, listing them is of utility as together they do indicate the broad approach taken
with the LOS Convention.
• Fringing reefs (Article 6)
• Straight baselines (Article 7)
• Mouths of Rivers (Article 9)
• Bays (Article 10)
• Ports (Article 11)
• Roadsteads (Article 12)
• Low-tide elevations (Article 13)

Article 14 allows a coastal State to use any of the above methods to suit differing conditions.

Some of the above categories will not, at first instance, be of relevance to ice-bound coasts.
Antarctica possesses no ports, and were a formal roadstead designated, it would be only a tiny
fraction of the coastline in issue. Even in the Arctic, where several ports are in use where ice
conditions are of great concern, such as Murmansk, the ice is not permanent and therefore does not
affect port operations for at least part of the year. As such, Articles 11 and 12 can be safely passed
over. A similar argument could be made in relation to Article 9, as Antarctica possesses only one
river, the Onyx, located in the Ross Dependency. Rivers in the Arctic, such as the Yenisey, Lena,
Ob and Mackenzie are only affected by ice for part of the year, and are important navigational routes
in the summer. No permanent river flows through an ice shelf to reach the sea.

The principal provisions from the above list that are of relevance are Article 7, dealing with straight
baselines, and Article 10, dealing with bays. However before these provisions can be considered, it
is necessary to examine the status of the ice upon the coast, to determine whether it is relevant to the
application of baselines. Obviously if ice is treated as permanent by a coastal State, and equated
with land for the purposes of Article 5, then Articles 7 and 10 may be of assistance in providing
additional basepoints. If ice is treated as not being capable of generating territorial sea basepoints,
then Articles 7 and 10 may have separate application. As such the status of ice in law needs to be
considered.

3. Status of Ice in International Law

5 The term “large scale” is not defined in the LOS Convention; but Article 16 does indicate the scale should
be sufficiently large to permit positions to be ascertained.
3
At the Third United Nations Conference of the Law of the Sea (UNCLOS III), the Antarctic Treaty
parties were most reluctant to have law of the sea issues discussed in the context of the Antarctic,
and were successful in ensuring that the 1982 LOS Convention contained no references to
Antarctica.6 As such, the LOS Convention does not deal adequately with a number of difficulties
which the environment of the region places before an Antarctic claimant State wishing to extend
jurisdiction over the surrounding ocean.

At UNCLOS III, the questions surrounding the status of ice were only discussed in terms of Arctic
lands, and largely among the Arctic States.7 Given that since the 1960s, both the Soviet Union and
the United States had successfully been able to navigate under the ice in nuclear-powered
submarines,8 and Canada has periodically toyed with the application of the sector theory,9 it is not
surprising the LOS Convention does not directly deal with the status of ice. Article 234 merely
permits regulation for the prevention of pollution and safety of navigation in ice-covered areas
within the EEZ.10 It does not specify where the baselines for the EEZ are to be located. However,
given that the article refers to ice within the EEZ, some authors have taken the view there is an
implication that floating ice (that is at least periodic rather than permanent) cannot be the subject of

6 Speaking in 1975 to the UN General Assembly, President Amerasinghe of UNCLOS III said:
I should make it clear that the question of the status of Antarctica is in no way linked with the issues
before the United Nations Conference on the Law of the Sea and, therefore, this question should not
delay agreement on a new Convention on the Law of the Sea.

United Nations, Official Records of the General Assembly, (New York: United Nations, 1975) Vol.30, 2380th
Meeting, para.36.
7 Nordquist notes that the only provision in the 1982 LOS Convention dealing with ice-covered regions, Article
234, was known as the “Arctic Article” and was negotiated directly by the USA, the USSR and Canada. It was
motivated by a desire to prevent pollution and ensure safety of navigation rather than a desire to clarify the
status of ice. M.H. Nordquist (ed.), United Nations Conference on the Law of the Sea 1982: A Commentary,
(Dordrecht: Martinus Nijhoff, 1991) 392-398. Auburn states that some third world countries did wish
UNCLOS III to deal with Antarctica and Southern Ocean issues, but were “headed off” by Treaty parties. F.
Auburn, Antarctic Law and Politics (Bloomington: Indiana University Press, 1982) 126; see also M.J. Peterson,
“Antarctic Implications of the New Law of the Sea” (1986), 16 Ocean Development and International Law 137
at 165. Gautier has noted that Article 234 appears “to be concerned rather with the Arctic”: P. Gautier, “The
Maritime Area of the Antarctic and the New Law of the Sea” in J. Verhoeven, P. Sands and M. Bruce (eds), The
Antarctic Environment and International Law (London: Graham and Trotman, 1992) 121 at 134.
8 See S.B. Boyd, “The Legal Status of the Arctic Sea Ice: A Comparative Study and a Proposal” (1984), 22
Canadian Yearbook of International Law 98 at 116.
9 Ibid., 103-110
10 Article 234 of the LOS Convention states:
Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the
prevention, reduction and control of marine pollution from vessels in ice-covered areas within the
limits of the exclusive economic zone, where particularly severe climatic conditions and the presence
of ice covering such areas for most of the year create obstructions or exceptional hazards to
navigation, and pollution of the marine environment would cause major harm or irreversible
disturbance of the ecological balance. Such laws and regulations shall have regard to navigation and
the protection and preservation of the marine environment based on the best available scientific
evidence.

4
claim,11 and the notion that floating ice cannot be equated with land appears to be the one
preferred.12 It is apparent that nothing in the LOS Convention appears to exempt ice covered areas,
in either the Arctic or the Antarctic, from the ordinary operation of the Convention.13

The nature of much of the ice in the Antarctic is different from Arctic ice. Whilst surrounded by a
huge band of pack ice and sea ice for much of the year, the existence of the huge Antarctic continent
creates a vast ice sheet, which is not duplicated in the Arctic to any great extent save in Greenland.14
This vast cap of ice covers well over ninety percent of Antarctica,15 rising to over 4000 metres high
in the interior. In addition, around the continent, a number of vast ice shelves, most notably the Ross
and the Filchner-Ronne, extend from the sheet as large ice shelves out over water, forming an
impenetrable barrier to normal navigation. The shelves originate from points grounded on the sea
floor and are floating.16 They can be identified as shelves by virtue of their floating character, and
“flex” up and down with the tide.

With very little land free of the ice, the great Antarctic ice sheet reaches to the coast around most of
the continent. While the ice is permanent, and is generally stable, gravity pushes the huge volume of
ice in the centre of the continent out to the shelves at the edges of the sheet.17 This periodically
causes the ice to "calve" and produce huge tabular icebergs,18 or in cases where the shelf is affected

11 The crucial phrase is “within the EEZ”. If ice was in all circumstances equated with land, it would by necessity
generate a territorial sea, and could not be said to be “within the EEZ”. This is the view of C.C. Joyner, “Ice-
Covered Regions in International Law” (1991), 31 Natural Resources Journal 213 at 220-229. See also Boyd,
supra note 8, 101-102.
12 It seems relatively clear that ocean pack ice cannot be claimed. Joyner, supra note 11, 224. Mangone, however,
questions the situation in the Arctic. G. J. Mangone, “The Legal Status of Ice in International Law” in R.
Wolfrum (ed.), Antarctic Challenge III (Berlin: Duncker & Humblot, 1988) 371 at 373. No claimant State in
the Antarctic expressly claims pack ice, except Chile, which has indicated that it has all types of ice in its sector.
See W. Bush, Antarctica and International Law (Dobbs Ferry: Oceana, 1982) Vol.2, 310-311. Pharand is of the
view that unless the ice is part of an ice shelf attached to land, it cannot be treated as land. D. Pharand, The Law
of the Sea of the Arctic with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973) 194-197.
Auburn notes there is no consensus on the status of ice, but points out this relates to ice shelves, while he
implies floating ice may not be the subject of claim. Auburn, supra note 7, 32-38. See also W.L. Lakhtine,
“Rights over the Arctic” (1930), 24 American Journal of International Law 703 at 712. Boyd examines the
opinions of jurists in Canada, the Soviet Union and the United States and appears to find a consensus that while
ice shelves may be the subject of some type of claim, more transitory floating ice and ice islands may, at best, be
treated as equivalent to ships, and not equated with land. Boyd, supra note 8, 120-136.
13 This point is made by C.C. Joyner, “The Status of Ice in International Law” in A.G. Oude Elferink and
D.R. Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (London:
Kluwer Law, 2001) 23 at 25.
14 Joyner notes that the Greenland ice sheet is, for the most part, confined to the interior of the island, so rarely
forms coastal ice shelves. Joyner, supra note 11, 220-221.
15 Joyner suggests 98% is a reasonable estimation. C.C. Joyner, Antarctica and the Law of the Sea (Dordrecht:
Martinus Nijhoff, 1992) 195 and see also Mangone, supra note 12, 373.
16 A useful, yet brief, discussion of the physical characteristics of the Antarctic ice sheet and ice shelves is found in
Joyner, supra note 15, 14-15 and see also Mangone, supra note 12, 373-374.
17 Auburn, supra note 7, 32.
18 Joyner, supra note 11, 229. Auburn notes that one known iceberg calved from a shelf had an area of 4650 km2.
Auburn, supra note 7, 32. Presumably the same iceberg is given as an example by Joyner, who places it at 100
kilometres long with an area the size of Luxembourg or Connecticut. Joyner, supra note 15, 15.
5
by warmer temperatures to collapse.19 Given that the territorial sea and EEZ are measured from
baselines that are usually taken to be the low tide limit of the land, the existence of the ice makes the
identification of exactly where this point is most difficult. A number of authors have indicated the
permanent nature of this shelf ice may make it susceptible to claim where it extends beyond the
land.20 They argue that it is indistinguishable from the ice-covered land,21 is relatively stable in that
the shelves consist of ice many thousands of years old, and change in size over decades, and to some
extent would greatly simplify the task of drawing baselines.22 Both Zuccaro and Joyner suggest that
the Antarctic Treaty23 itself may imply such a view in the construction of Article VI, specifically
separating ice shelves from the high seas. In 1959, when the widest surface maritime zone was the
12 nautical mile contiguous zone, the high seas would have accounted for much of the great ice
shelves' area, were they not susceptible to claim as something equating to land.24

However, even those who argue that seaward parts of the Antarctic ice might be the subject of claim
differ as to the status such a claim would have. One point of view holds that an ice shelf might be
equated with land, whilst another is that while title to an ice shelf is greater than that over the
territorial sea, it is less than that over land.25 As such an intermediate category, glaces firma, should

19 This occurred in 2002 with the Larsen B ice shelf. Information courtesy of Dr Ian Allison, Australian
Antarctic Division.
20 Such a view appears to be taken by Van der Essen when he indicates that an Article 5 baseline cannot be located
anywhere but the outward face of the ice shelves “which are the seaward prolongation of the Antarctic
continent.” A. Van der Essen, “The Application of the Law of the Sea to the Antarctic Continent” in F. Orrego
Vicuña (ed.), Antarctic Resources Policy (Cambridge: Cambridge University Press, 1983) 234. Mangone seems
to believe that “fast ice” (i.e. ice that is attached to territory) can be treated under Article 7 of the Law of the Sea
Convention which is used for drawing baselines around highly unstable coasts. Mangone, supra note 12, 379-
380. See also Joyner, supra note 11, 227; E.A. Zuccaro, “Iceberg Appropriation and the Antarctic's Gordian
Knot” (1979), 9 California Western International Law Journal 405 at 413-414; F. Orrego Vicuña, Antarctic
Mineral Exploitation: The Emerging Legal Framework (Cambridge: Cambridge University Press, 1988) 159-
160; and E.J. Sahurie, The International Law of Antarctica (Dordrecht: Martinus Nijhoff, 1992) 380.
21 That is to say, an ice shelf is capable of occupation, like land. Permanent Antarctic stations such as Amundsen-
Scott at the South Pole and Vostok in the interior have rested on ice for decades. Vostok actually rests upon ice
that is grounded on land that is below sea level.
22 Mangone argues that the ice shelf ought to become the baseline for the territorial sea, contiguous zone and EEZ,
as it has surface coordinates allowing for the visible demarcation of the territorial sea. However, he indicates
that it ought not be used in determining the extent of the continental shelf beyond the EEZ. Mangone, supra
note 12, 381. Pharand is of the view that, if of a permanent nature, ice shelves may be assimilated to land and
be used as baselines for the territorial sea. Pharand, supra note 12, 187-188. Prescott takes the position that
because of the practical difficulties of identifying a baseline fixed to the buried land, and because the ice never
disappears, the obvious solution is to permit baselines to be drawn at the edge of the shelf ice. J.R.V. Prescott,
“Boundaries in Antarctica” in S. Harris (ed.), Australia’s Antarctic Policy Options (Canberra: Australian
National University, 1984) 84 at 93. See also A. Watts, International Law and the Antarctic Treaty System
(Cambridge: Cambridge University Press, 1992) 144.
23 Done at Washington DC, 1 December 1959, entered into force 23 June 1961: 402 U.N.T.S. 71.
24 Zuccaro, supra note 20, 414 and Joyner, supra note 11, 226.
25 Auburn suggests that as the ice shelf exhibits both the characteristics of land and sea, it should be "a special
form of territory sui generis and subject to physical appropriation". Auburn, supra note 7, 35. Joyner also
suggests a third category would present “a more appealing option.” C.C. Joyner, “The Exclusive Economic
Zone and Antarctica: The Dilemmas of Non-Sovereign Jurisdiction” (1988). 19 Ocean Development and
International Law 469 at 475-476. Rothwell suggests that by virtue of Article VI of the Antarctic Treaty, the ice
shelves are sui generis. D.R. Rothwell, “The Antarctic Treaty: 1961-1991 and Beyond” (1992) 14 Sydney Law
Review 62 at 70.
6
be recognised.26 Given the immense size of the ice shelves, the ultimate solution is of great
significance to the position of the maritime zones generated by Antarctic lands. This is best
illustrated by example. If the baselines for the territorial sea in Antarctica were drawn from the edge
of the ice shelf, a band of territorial sea would front the edge of the Ross Ice Shelf in the Ross Sea.
A corresponding EEZ would extend well out into the Ross Sea, most of which would be navigable
during the summer season. If, however, only the lands of the continent proper were used, the centre
of the edge of the Ross Ice Shelf itself would in fact be the high seas, just seaward of any EEZ
generated by the lands of the Ross Dependency. As such, none of that EEZ would be navigable at
any stage. Given there is the possibility of resource exploitation of at least the krill fisheries of the
Ross Sea, the difference in the placement of baselines and the regime of ice is crucial.

There are a number of sound arguments against the utilisation of ice shelves as the baselines for the
territorial sea in the Antarctic.27 Compared to most land coasts, they are unstable, so would cause an
Antarctic territorial sea to "move" over time as parts of the slow moving shelf broke away.28 The
shelves grow over time, and then retract through calving or collapse meaning the outer edge of the
feature would change from year to year. The ice can be distinguished from the surrounding oceanic
ice relatively simply, but the edge would still move regularly. This movement would occasion
difficulties and might be resolved, for example, by using a system of baselines, based on the shelf's
extent at a known date plus an arbitrary distance,29 or determining the average extent of the shelf.30

26 The term glaces firma means “firm ice” and is used by Joyner, who is of the view it could be “legally
assimilated to land for jurisdictional considerations”. Joyner, supra note 11, 221 and 226. McConnell also refers
to glaces firma in the context of the Arctic, and equates permanent ice with land due to there being permanence
and the ability for the ice to sustain habitation, but denotes its intermediate character by denying the claiming
State rights to the subsoil and super-adjacent airspace. W.H. McConnell, “The Dispute on Arctic Sovereignty: A
Canadian Appraisal” (1973), 25 University of Florida Law Review 465 at 483-491. See also Zuccaro, supra
note 20, 411-412 and 414. Bernhardt suggests that the construction of Article VI, which appears to place ice
shelves within the ambit of the Treaty together with land, implies that they ought to be treated as glaces firma.
J.P.A. Bernhardt, “Sovereignty in Antarctica” (1975), 5 California Western Journal of International Law 297 at
308. Sahurie classifies ice shelves as glaces firma on the basis of the characteristics of the uses to which it may
be put. Sahurie, supra note 20, 553. However, it is worth noting that a separate category for shelf ice is not an
indication that it ought to be used as the baseline for the territorial sea. Joyner, while supporting an intermediate
category for permanent ice, does not appear to support the use of it to place baselines. Joyner, supra note 15,
84-87.
27 Joyner notes that while using the rules for closing lines for bays has some appeal for smaller ice shelves, such a
solution would be impractical given the vast size of the major Antarctic ice shelves, which are up to 450 miles
wide at the coast. Joyner, supra note 25, 474-475. Sahurie notes that there is “wide support” in the literature
against the drawing of baselines from ice shelves, although he does not concur with this view. Sahurie, supra
note 20, 551. See also F. Orrego Vicuña and M.T. Infante “Le Droit de la Mer dans L’Antarctique” (1980), 84
Revue Générale de Droit International Public 340 at 344.
28 Joyner notes that the three largest ice shelves, the Ross, the Ronne and the Amery, are moving seawards at their
seaward point 900 to 1300 metres per year. Joyner, supra note 15, 80 and see also Auburn, supra note 7, 36 and
Joyner, supra note 25, 475.
29 Auburn proposes a system using the extent of the ice shelf at a known date, with an allowance of an arbitrary
figure (50 miles) for seaward extensions. Auburn, supra note 7, 36-37.
30 Zuccaro, supra note 20, 419. Boyd indicates a combination of these schemes might be suitable for the Arctic.
Boyd, supra note 8, 139. Joyner, however, disapproves of such a scheme stating “neither historic treatment of
sea ice, nor current norms of international law, nor the requirements of jurisdictional practicability support the
adoption of such an open-ended maritime jurisdiction.” Joyner, supra note 25, 474.
7
Joyner also makes the point that sovereignty as an issue mitigates against the giving any status to the
ice making up the Antarctic.31 He notes there is no similar problem for the Greenland ice sheet as
Danish sovereignty is well recognised and was confirmed by the Permanent Court of International
Justice in 1933.32 This argument reflects a line used by American publicists, that Antarctica cannot
sustain a sovereignty claim, and therefore there is no entitlement to the maritime zones surrounding
it.33 From a claimant State’s viewpoint, this argument lacks substance. The issue of sovereignty
determines whether a valid claim to land can be made. If this is made out, then all other rights
follow. The claimant State position is upheld by Article IV of the Antarctic Treaty which allows
claims to be maintained without prejudice.34 Why this should automatically impact upon the status
of ice in Antarctic, but not the Arctic is not logical.

The whole situation is further complicated by the ice sheet itself. The great pressure of the ice on the
continent has had the effect of depressing the land mass beneath. As such, large portions of the
Australian Antarctic Territory, as well as Adelie Land and Dronning Maud Land, are in fact below
sea level, although the mean altitude of the ice upon them may be in excess of 3000 metres. It is
theorised that if the ice cap were removed, the land would rise as a result, but exactly how much of
Antarctica would be above sea level through this "isostatic rebound" is difficult to assess.35 If areas
were unlikely to rise above sea level, in the event of the removal of the ice, then what would result is
a vast continental archipelago rather than a continent.36 If ice cannot be the subject of national
claim, what is the status of land below sea level buried beneath the ice?37 If this land is subject to
claim (and clearly from State practice all the Antarctic Treaty System parties regard it as land) how
does it differ from the seabed of the Ross Sea, for example, beneath the Ross Ice Shelf? In both
cases it is earth at an altitude below sea level with a vast thick layer of ice over it.38 Any widespread

31 Joyner, supra note 13, 28-29.
32 Legal Status of Eastern Greenland (Norway v Denmark) [1933] PCIJ Series A/B No.53.
33 See G.J. Mangone, “Defining the Indefinable: Antarctic Maritime Boundaries” in G.H. Blake (ed.), Maritime
Boundaries and Ocean Resources (London: Croon Helm, 1987) 227 at 237-239; Peterson, supra note 7, 160;
and B.H. Oxman, “Antarctica and the New Law of the Sea” (1986), 19 Cornell Journal of International Law
211 at 228.
34 See discussion below.
35 Auburn, supra note 7, 34 and Bernhardt, supra note 26, 306-307. Watts has noted that even if parts of the
continent were to rise after removal of the ice, other parts would be inundated by the dramatic rise in sea levels
that would accompany the melting, complicating an assessment as to which areas are land. Watts, supra note
22, 144.
36 Drewry notes that were isostatic rebound to take place, there would be “significant alteration” in the land areas
that were currently (apparently) above and below sea level. D.J. Drewry, “The Antarctic Physical Environment”
in G. D. Triggs (ed.), The Antarctic Treaty Regime: Law, Environment and Resources (Cambridge: Cambridge
University Press, 1987) 6 at 9.
37 This question has been raised by S. Chopra, “Comment: The Legal Consequences of Antarctic Stations” in
Wolfrum, supra note 12, 393-394. Bernhardt has suggested that such areas would best be treated as land.
Bernhardt, supra note 26, 299. Bernhardt also correctly notes that attempting to use estimates of the effect of
isostatic rebound to determine if particular parts of Antarctica would be above sea level, and hence land, would
be most impractical. Bernhardt, supra note 26, 307-308.
38 In actual fact, the current mean altitude of parts of the floor of the Ross Sea beneath the Ross Ice Shelf is higher
than parts of Antarctica proper.
8
melting of the ice sheet as a result of global warming may force a reappraisal as to exactly what is
land and what is sea in Antarctica39, although this eventuality is very much in the distant future.

Yet another difficulty caused by Antarctic ice concerns the ice shelves. Away from the grounding
point, the ice shelves are separated from the sea floor by water. The status of these waters is also
unclear.40 Navigation (although very dangerous and somewhat pointless)41 may be possible, as it is
in the Arctic Ocean, and if the ice above them is treated as land, are they to be regarded as
underground waters, internal waters, or the territorial sea?42 If these waters are to be the territorial
sea, presumably the baselines are drawn at the grounding point of the ice,43 and as Mangone has
suggested this is unsatisfactory.44 Certainly it would be as impractical as using the rock edge of the
continent, as it would also not be visible at the surface, and in addition, would be difficult to identify
with precision beyond a zone of a few kilometres.45

The two largest ice shelves, the Ross and the Filchner-Ronne are within the claimed sectors of a
number of claimant States. The Ross Ice Shelf dominates the New Zealand Ross Dependency, while
the Filchner-Ronne falls within the overlapping claims of Argentina, Chile and Great Britain. The
Australian Antarctic Territory contains the Amery, Shackleton, Cook, Voyeykov, Moscow University
and West ice shelves and the Dibble Iceberg Tongue, and the Ninnis and Mertz glaciers, all of which
extend into the surrounding sea are within the Australian sectors.46 The Amery Ice Shelf, the largest
of these, faces out into Prydz Bay, which has been identified as a valuable fishery and potential
mining area.47 The undefined nature of the Norwegian claim over Dronning Maud Land and the

39 A related argument is canvassed by Joyner. He notes that the ice sheet itself might be characterised as frozen
sea, and so all the continent, save the handful of ice free areas, would be effectively designated high seas. Given
the nature of the ice sheet, that it is produced from fresh water precipitation in the continent's interior, and the
awkward precedent this would set for the Arctic States, the suggestion can be regarded, as Joyner himself notes,
as “highly suspect”. Joyner, supra note 15, 196-197.
40 Rothwell, supra note 25, 70. Joyner suggests subglacial waters might be best considered an extension of the
high seas, while the shelf above them should be treated as land. Joyner, supra note 11, 227-228. Such an
approach would confuse the status of the underlying sea-bed, especially in the event of drilling from the surface
of the ice.
41 Since navigation would be extremely dangerous, the practical problem would be unlikely to arise. Bernhardt,
supra note 26, 310. Watts has indicated that for some purposes, notably storage of materials, these waters might
be safer than other parts of the sea. Watts, supra note 22, 145.
42 Bernhardt suggests they may be treated as res communis omnium. Bernhardt, supra note 26, 310. Watts
appears to prefer the view that the waters be treated as internal waters, but notes the usual jurisdictional and
sovereignty problems would accompany such an approach. Watts, supra note 22, 145.
43 This seems to be the preferred view of Joyner, who suggests grounded ice can be treated as land, while ice
shelves, which are not grounded, be treated as the high seas. Joyner, supra note 11, 228. He later indicates that
straight baselines would be the most practical method. Ibid., 230-231.
44 See transcript of “General Discussion” held at Kiel 7 July - 12 July 1987 reproduced in Wolfrum, supra note 12,
439-440.
45 The identification of the grounding line through remote sensing, through satellite imagery, has been
successfully undertaken by the Australian Antarctic Division in conjunction with the National Mapping
Division of Geoscience Australia.
46 This list was taken in part from Prescott, supra note 22, 94 and from Natmap NMP/85/109.2 produced by the
Australian National Antarctic Research Expeditions (ANARE).
47 See Senate Standing Committee on Natural Resources, The Natural Resources of the Australian Antarctic
Territory, Canberra, 1985
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